DA Signs Policy to Stop Accepting Marijuana Misdemeanor Cases

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Bexar County Criminal District Attorney Joe Gonzales speaks after being sworn in.

Bonnie Arbittier / Rivard Report

Bexar County District Attorney Joe Gonzales has signed a policy relaxing criminal charges on some marijuana misdemeanor cases.

District Attorney Joe Gonzales joined three other Texas district attorneys in a decision to reject marijuana misdemeanor cases without lab results showing a THC level over 0.3 percent.

Gonzales, Harris County DA Kim Ogg, Fort Bend County DA Brian Middleton, and Nueces County DA Mark Gonzalez released a joint policy Wednesday declaring their intent to only accept charges in low-level marijuana possession cases where substances have been tested.

In the new policy, district attorneys cited House Bill 1325 as the reason for the measure. The bill legalized hemp and hemp products, but the provided definition of hemp changes the definition of marijuana, the district attorneys wrote. In the new law, cannabis with less than 0.3 percent of tetrahydrocannabinol – also known as THC, the psychoactive component of marijuana – is considered hemp. If the THC content is higher, then it is classified as marijuana.

“In order to follow the Law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions represented by the undersigned elected District Attorneys will not accept criminal charges for Misdemeanor Marijuana Possession of Marijuana (4 oz. and under) without a lab test result proving that the evidence seized has a THC concentration over .3%,” the document stated. 

The new policy comes days after a new cite-and-release program started in Bexar County for low-level nonviolent crimes, such as possession of small amounts of marijuana. Gonzales also announced in May that his office would not prosecute cases involving possession of less than one ounce of marijuana and less than a quarter of a gram of other controlled substances. The DA policy does not affect law enforcement’s job, Gonzales stressed in both instances.

“If there’s nothing aggravated about the case, then we’re going to exercise our discretion in declining those cases. … Law enforcement has the discretion to arrest anyone and we, in turn, will make the decision to accept the case or prosecute,” Gonzales said in May.

Gonzales said Bexar County cannot currently meet the requirement of testing THC concentrations.

“Our office is working diligently to locate a lab that can conduct such testing,” Gonzales said in a prepared statement Wednesday. “Notwithstanding this current state of the law, nothing prevents law enforcement from conducting a routine search, seizure  and potential arrest based on probable cause.”

The district attorneys added in their joint policy that felony marijuana charges, which include possession of more than four ounces, will be reviewed on a case-by-case basis.

“In the proper instances, such charges may be taken while lab test results are pending,” the district attorneys wrote.

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